Compelled Speech: NIFLA v. Becerra

The Supreme Court is finishing its last dregs of this term’s coffee cup. In a (perhaps) somewhat overlooked case, the Court began yesterday morning’s session by issuing its decision in National Institute of Family & Life Advocates v. Becerra (No. 16-1440), a “compelled speech” First Amendment case involving a challenge to California’s Reproductive FACT Act.

Beginning shortly after 10:00am EDT, the Court announced that, by a 5:4 margin, it had ruled for the plaintiffs in NIFLA v. Becerra, thus striking down the recent California law that required anti-abortion crisis pregnancy centers to prominently display notices on-site that give information about attaining, inter alia, low-cost or free abortions.

The “Reproductive FACT Act,” as it was called, stressed that “[a]ll California women, regardless of income, should have access to reproductive health services,” § 1(a), and asserted that “[m]illions of California women are in need of publicly funded family planning services, contraception services and education, abortion services, and prenatal care and delivery,” § 1(b). The act mandated that licensed crisis pregnancy centers “disseminate to clients on site the following notice,” which stated that “California has public programs that provide immediate free or low-cost access to comprehensive family planning service . . . , prenatal care, and abortion for eligible women.” It further ordered unlicensed centers to state that the particular facility “is not licensed as a medical facility by the State of California and has no licensed medical provider who provides or directly supervises the provision of services,” both to clients on site and in “any print and digital advertising materials.”

A group of pregnancy centers (including both licensed and unlicensed) filed suit. A California district court denied the group’s motion for a preliminary injunction, which was affirmed by the United States Court of Appeals for the Ninth Circuit (Nat’l Institute of Family and Life Advocates v. Harris, 839 F.3d 823 (2016)). The group then appealed to the Supreme Court, which granted certiorari to review the Ninth Circuit’s decision.


The Majority Opinion

Justice Clarence Thomas wrote for the majority. He asserted that the “First Amendment . . . prohibits laws that abridge the freedom of speech” and that any laws or regulations that target speech based on its content (dubbed “content-based regulations”) are generally unconstitutional, unless “the government proves that they are narrowly tailored to serve compelling state interests.”

Thomas first addressed the challenge from licensed anti-abortion centers that the regulation forcing them to post information about having abortions infringes upon their First Amendment right to free speech. He began by finding that the regulation is indeed a “content-based regulation” because it “compell[ed] individuals to speak a particular message.” For example, the licensed centers were compelled by the Act to disseminate information in the form of a “government-drafted script” about state-sponsored abortions. It is hardly debatable, then, that by requiring the anti-abortion centers to “inform women how they can obtain state-subsidized abortions” while the centers simultaneously “try to dissuade women from choosing that option,” the Act “plainly alters the content” of the centers’ speech.

Thomas seemingly rebukes California for its original intentions in passing the act, arguing that “[i]f California’s goal is to educate low-income women about the services it provides, then the licensed notice is ‘wildly underinclusive'” (citing the Majority Opinion in Brown v. Entertainment Merchants Assn., 564 U.S. 786, 802 (2011)). Rather than apply to a whole host of community clinics, including “nearly 1,000” state community health centers, federal clinics, and Family PACT providers, the Act is only applicable to “clinics that have a primary purpose of providing family planning or pregnancy-related services.” Thomas drives the nail home on this point, insisting that:

If the goal is to maximize women’s awareness of these programs, then it would seem that California would ensure that the places that can immediately enroll women also provide this information. The FACT Act’s exemption for these clinics, which serve many women who are pregnant or could become pregnant in the future, demonstrates the disconnect between its stated purpose and its actual scope.

Thomas also suggests that there are multiple other ways to promulgate the information for family planning services, rather than “burdening [anti-abortion centers] with unwanted speech.” Thomas specifically references public-information campaigns and posting the notices on public property near the crisis pregnancy centers as more suitable vehicles for dispersing the information than forcing the anti-abortion centers to do so. Thomas sums up his views regarding the licensed centers’ challenge by stating that “California cannot co-opt the licensed facilities to deliver its message for it,” and that the centers “are likely to succeed on the merits of their challenge.”

He then addresses the notice required for unlicensed centers. He tersely holds that “California has not demonstrated any justification for the unlicensed notice that is more than purely hypothetical.” He sharply criticizes the scope of the FACT Act, arguing that: (1), the unlicensed notice requirements are “wholly disconnected from California’s information interest;” (2), that the unlicensed facilities must post the notice “no matter what the facilities say on site or in their advertisements;” and, (3), that the notice “covers a curiously narrow subset of speakers.”

In perhaps his most poignant wording of the piece, Thomas refers back to California’s own statements during oral argument:

As California conceded at oral argument, a billboard for an unlicensed facility that says “Choose Life” would have to surround that two-word statement with a 29-word statement from the government, in as many as 13 different languages. In this way, the unlicensed notice drowns out the facility’s own message . . . [and] effectively rules out the possibility of having such a billboard in the first place.

In similar fashion to the licensed notices, Thomas holds that the unlicensed notice “targets speakers, not speech, and imposes an unduly burdensome disclosure requirement that will chill their protected speech.” Thomas therefore concludes that the anti-abortion crisis pregnancy centers are correct in contending that California’s Reproductive FACT Act violates the First Amendment. As a result, the Ninth Circuit’s judgment was reversed and the case was remanded for further proceedings in light of the opinion.

Chief Justice Roberts, along with Justices Kennedy, Alito, and Gorsuch, joined in the Majority Opinion.


Justice Kennedy’s Concurrence

Justice Kennedy additionally wrote a concurring opinion, which was also joined by Chief Justice Roberts and Justices Alito and Gorsuch. Kennedy aimed to “underscore that the apparent viewpoint discrimination here is a matter of serious constitutional concern.” He stressed that the Act “is a paradigmatic example of the serious threat presented when government seeks to impose its own message in the place of individual speech, thought, and expression.”

Kennedy concludes by rebutting the Act’s “congratulatory statement,” which said that the “Act was part of California’s legacy of ‘forward thinking.'” He asserts that “it is not forward thinking to force individuals to be an instrument for fostering public adherence to an ideological point of view [they] fin[d] unacceptable.” In picturesque fashion, Kennedy distinguishes between California’s supposed “forward thinking” and true free speech pioneering pursuant to the First Amendment:

It is forward thinking to begin by reading the First Amendment as ratified in 1791; to understand the history of authoritarian government as the Founders then knew it; to confirm that history since then shows how relentless authoritarian regimes are in their attempts to stifle free speech; and to carry those lessons onward as we seek to preserve and teach the necessity of freedom of speech for the generations to come. Governments must not be allowed to force persons to express a message contrary to their deepest convictions. Freedom of speech secures freedom of thought and belief. This law imperils those liberties.


Justice Breyer’s Dissent

Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan, dissented. Breyer held that the notices for both licensed and unlicensed centers ought to pass the constitutional provisions required by the First Amendment. Regarding the licensed notice, Breyer argues that “the majority’s reliance on cases that prohibit rather than require speech is misplaced.” Similarly, Breyer contends that the Majority Opinion erred in adjudicating the constitutionality of the unlicensed notice, arguing that the majority is incorrect in: (1), deeming California’s interest in passing the Act as “purely hypothetical;” (2), suggesting that the Act is unreasonable because it “applies too broadly, namely, to all unlicensed facilities ‘no matter what the facilities say on site or in their advertisements;'” (3), that there is cause for concern in this case because the Act covers “some speakers but not others;” and, (4), that the Act is overly burdensome.

Yesterday morning’s second case, Trump v. Hawaii, is reviewed here.

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